What’s a “trade secret” for discovery objections and what are the steps for trial court review?
In Bright House Networks, LLC v. Albert C. Cassidy et al. (Florida Second District, Jan. 10, 2014), we learn that at least one cable TV provider apparently provides free service to “a significant number of recipients.” Moreover, the list of those customers was claimed to be a trade secret.
How does a party raise a trade secret objection? And what steps are required to overcome it?
In Bright House, the Second DCA held that referencing “trade secrets, confidential, and/or proprietary business information” was sufficient language to preserve the issue.
Consistent with Florida Statutes 90.506 (privilege against disclosure of trade secrets), a trial court should take the following steps:
1. Determine if the requested information is a “trade secret” per Florida Statute 688.002(4). This is usually done via an in camera inspection. A customer list can be a trade secret. Here, the Second DCA admitted that an in camera inspection of a list of names/addresses might not be helpful. That said, a hearing (and evidence) might be needed to determine whether the compilation of information is confidential and that the company acquired it through the pursuit of its business strategy and course of confidential negotiations.
2. Determine if the requesting party has shown reasonable necessity. This includes limiting production to items necessary for a court to determine contested issues.
3. Order safeguards, as needed.
Faced with a dispute over whether a defendant hospital was entitled to access to the plaintiff’s Facebook account, a Pennsylvania judge ordered that a “neutral expert” would be given access to search the plaintiff’s Facebook account for photos of her engaging in physical activity and for references to “snow” (due to alleged evidence she was sledding or undertaking outdoor winter activity). Apparently, the issue was whether the Facebook content would reveal some evidence that she was acting contrary to her injury claims.
Typically, as we’ve discussed here before, judges will take one of three approaches: (1) granting access as a normal part of discovery; (2) requiring some threshold indication that there is something discoverable on Facebook; or (3) simply denying the request.
No indication what a “neutral forensic computer expert” may be relative to Facebook.
Maybe a lawyer with a blog?
A full background discussion can be found in Discovery of Facebook Content in Florida Cases.
Case is Perrone v. Lancaster Regional Medical Center (Judge James P. Cullen).
The order is here.
This article discusses the Patreaus affair from the standpoint of practical email privacy tips for lawyers, law firms, their clients, and families.
A brief explanation is provided how emails (or even fake email addresses) are traceable with free software and what data exists on the person’s computer to show what sites have been viewed.
This article appeared in the January 2013 edition of the Palm Beach Bar Association Bulletin.
Want to know how to find (or hide) on a computer what websites were visited, what images were viewed, and what files were deleted? Even if you are not a computer forensic specialist, you can find this information using basic steps and free software on the Internet. This is helpful for inhouse counsel, lawyers, and even parents.
Surprisingly, these steps are considered so easy, that Judge Posner of the Seventh Circuit stopped short of claming, “even a judge could do this.” Instead, he notes that “despite the availability of software for obliterating or concealing incriminating computer files, the use of such software is surprisingly rare.” Well, maybe. CCleaner remains a frequently-sought program at Download.com. The case is United States v. Seiver.
Learn computer steps and evidence standards in the November 2012 article from the Palm Beach Bar Association, What Does a Child Pornography Case Tell You About Computer Evidence?
The criminal case of Kevin Rodriguez v. State of Nevada is one of three recent cases nationwide which discusses the admissibility of text messages in trial.
In Rodriguez, a victim was attacked, robbed, and her cell phone was taken. Thereafter, twelve text messages were sent from the victim’s phone. The case was brought against two defendants who were later apprehended in possession of the phone (which also had a picture of them in the phone which was taken after the assault).
Some quotes from the opinion:
* “Text messages offer new analytical challenges when courts consider admissibility. However, those challenges do not require a deviation from basic evidentiary rules…”
* A person cannot be identified as the author of a text message solely on the evidence that the text came from that person’s phone. Some additional evidence is required to authenticate.
* Circumstantial evidence corroborating the sender’s identity may include the context or content of the messages…
* Proponent of the evidence must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate…
* Once admitted, opponent may rebut authentication and it is for the jury to decide…
Can you find someone with only a cell, fax or phone number?
Or just a name?
Or email address?
The March 2012 Palm Beach County Bar Bulletin can tell you in this month’s Technology Corner article, Internet Sleuthing: Number Guru and Spokeo.
Because so many people are involved in the everyday step of sending records from a law office to an expert, the mistake of inadvertantly including privileged information occurs now and again. Is it waiver? Will the jury see it?
In Nan H. Mullins, D.M.D. v. Alice Tompkins (Benton, Webster and Roberts), the unfortunate defense counsel faced this discovery catestrophe and it lead to an appeal. In this case, the defense expert received a copy of defense counsel’s evaluation letter sent to the defendant and insurance company as well as emails between defendant and lawyer.
The court held that the documents were ordinarily privileged and that mere accidental production does not automatically waive the privilege, see Fla.R.Civ.P. 1.280(b)(4)(B). Since, here, the expert testified he never read nor relied upon them, there was no breach and no reason for disclosure (although we are curious how this was not caught during the expert’s review of what was sent to him and the lawyer’s pre-deposition conference).
The Panel further pointed out that even if it was discoverable, it may not be admissible to be paraded in front of the jury.
Look no further than our brethren in Michigan, who hustled out a June 30, 2009 order providing the anti-Twittering jury instruction for trial judges. The rule goes into effect in September.
No, it may not be required here in Florida yet, but isn’t it a good idea? Why not offer to the judge for your next trial?
Would the other side actually disagree?
The rule is here. The Detroit Free Press article is here.